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Case 2:00-cv-02931-JCL-MF Document 329 Filed 12/27/2005 Page 1 of 20
:: MEMORANDUM AND ORDER
: MDL Docket No.: 1384: Master Docket No: 00-2931 (JCL):: Civil Action Nos.::: 00-2931: 00-3522 :
LIFLAND, District Judge
Before the Court is First-Wave Defendants’1 Motion to Bar Kaye Scholer LLP
1 First-Wave Defendants include Purepac Pharmaceutical Co. and Faulding
Inc. (collectively “Purepac”), Teva Pharmaceuticals USA and TevaPharmaceuticals Ltd. (collectively “Teva”), Zenith Laboratories, Inc., Zenith
Case 2:00-cv-02931-JCL-MF Document 329 Filed 12/27/2005 Page 2 of 20
From Appearing as Attorneys for Plaintiffs. For the reasons set forth below, First-
Wave Defendants’ motion is granted.BACKGROUND
This motion to bar the law firm of Kaye Scholer from appearing on behalf of
plaintiffs in this multidistrict patent infringement action (the “Gabapentin action”)
stems from the side-switching activities of two current Kaye Scholer attorneys, Scott
G. Lindvall and Patricia J. Clarke, formerly of Darby & Darby (“Darby”). At the time
of their association with Darby, Mr. Lindvall and Ms. Clarke were primarily
responsible for the representation of Defendant Ivax Corporation (“Ivax”) in the
In February 2001, the Judicial Panel on Multidistrict Litigation issued an Order
consolidating the patent infringement litigations against the First-Wave Defendants
before this Court. Shortly thereafter, the First-Wave Defendants entered into a
written Joint Defense and Confidentiality Agreement (“JDA”) which recognized,
inter alia, that the sharing of confidential information, including attorney work-
product, would be in the best interests of all defendants to efficiently manage the
defense of this litigation. Mr. Lindvall, then a partner at Darby & Darby, executed
Goldline Pharmaceuticals, Inc., and IVAX Corporation (collectively “Ivax”), EonLabs Manufacturing ( “Eon”), and Apotex Corporation, Apotex Inc., andTorpharm Inc. (collectively “Apotex”).
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Mr. Lindvall and Ms. Clarke, Senior Counsel to Darby, were involved in the
defense of the Gabapentin action. According to Ivax and the other First-Wave
Defendants, Mr. Lindvall and Ms. Clarke were privy to confidential attorney work-
product and privileged information relating not only to Ivax, but to all First-Wave
Defendants. Mr. Lindvall and Ms. Clarke established and executed defense strategy;
collected both testimonial and documentary evidence from Ivax’s employees and
files; and analyzed legal issues in preparation for summary judgment motions. They
also participated regularly in joint defense meetings and conference calls where
counsel for all First-Wave Defendants freely discussed their strategies for conducting
the litigation, including formulating invalidity and noninfringement defenses and
discovery strategies, evaluating expert reports, and drafting First-Wave Defendants’
joint statement of facts and motions regarding the production of documents from
Warner-Lambert’s privilege log. (Declaration of Steven D. Rubin, Esq., ¶ 4;
Declaration of Steven M. Amundson, Esq., ¶ 11; Declaration of Paul J. Molino, Esq.,
¶ 8; Declaration of Stanley H. Lieberstein, Esq., ¶ 10) Neither Pfizer, Kaye Scholer,
nor Mr. Lindvall and Ms. Clarke dispute that Mr. Lindvall and Ms. Clarke were fully
engaged in and primarily responsible for the pretrial representation of Ivax, and in the
course thereof, were privy to confidential attorney work-product and privileged
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information relating to all First-Wave Defendants.
Darby’s representation of Ivax ceased in June 2003. In March 2005, Mr.
Lindvall sought to join Kaye Scholer as a partner. Mr. Lindvall recommended to
Kaye Scholer that the firm also hire Ms. Clarke. Kaye Scholer, at the time, did not
represent Pfizer in the Gabapentin action, but did represent Pfizer in In re Neurontin
Antitrust Litigation, MDL No. 1479, pending in this Court. Kaye Scholer was aware
of the possibility that Pfizer might ask the firm to represent it in the Gabapentin
During the course of Kaye Scholer’s evaluation of Mr. Lindvall’s and Ms.
Clarke’s candidacies, it became known that they had previously represented Ivax in
the Gabapentin action on behalf of Darby. Accordingly, Mr. Lindvall was advised
that any partnership offer was contingent upon Kaye Scholer obtaining appropriate
waivers by Ivax of any conflict arising out of Kaye Scholer’s representation of Pfizer
in both the Neurontin matter and the Gabapentin action. Ms. Clarke was similarly
informed that a job offer depended on Ivax executing a waiver. (Sherman Decl. ¶ 4)
In seeking to obtain these waivers, Milton Sherman, Esq., partner and co-chair
of the Patent Group at Kaye Scholer, contacted William Mentlik, Esq., Ivax’s outside
counsel. Mr. Sherman explained that Kaye Scholer wanted to add Mr. Lindvall as a
partner, subject to an appropriate ethical screen. Mr. Sherman asked if Ivax would
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be willing to waive any right to assert a conflict of interest against Kaye Scholer
based on Mr. Lindvall joining the firm, with appropriate screening. Mr. Mentlik
agreed to discuss the matter with Ivax’s general counsel, Steven D. Rubin, Esq., and
indicated that he would recommend that Ivax agree to the request for a waiver.
(Sherman Decl. ¶ 5) A similar discussion regarding Ms. Clarke took place several
By letter dated April 14, 2005, Mr. Sherman proposed the following
Mr. Lindvall, after joining Kaye Scholer, will notwork on either the Neurontin or the Gabapentin Matter, anyof the individual actions included within those matters, orany FDA issue relating to Neurontin or gabapentin. Inaddition, Kaye Scholer will create an ethical screenbetween Mr. Lindvall and the Kaye Scholer attorneys andpersonnel representing Pfizer in both the Neurontin andGabapentin Matters and any FDA issues relating toNeurontin and Gabapentin.
IVAX agrees that it waives any right to assert, in anycontext, that adding Mr. Lindvall as a partner of KayeScholer creates an ethical conflict, including, but notlimited to, any right to seek to disqualify Kaye Scholerfrom serving as counsel of record for Pfizer in theNeurontin or Gabapentin Matter or in any of the individualactions included within those matters, or from serving ascounsel to Pfizer in connection with any FDA issuesrelating to Neurontin or gabapentin.
(Sherman Decl. Ex. 1) Mr. Rubin accepted the terms of the proposed arrangement
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and agreed to the waiver. (Id.; Rubin Decl. Ex. A) Mr. Sherman subsequently sent
a letter proposing the same waiver for Ms. Clarke, to which Mr. Rubin likewise
agreed. (Sherman Decl. Ex.2; Rubin Decl. Ex. B) Neither Mr. Mentlik nor Mr.
Rubin consulted or sought approval from the other First-Wave Defendants.
(Amundson Decl. ¶ 15; Molino Decl. ¶ 10; Lieberstein Decl. ¶ 12) Furthermore, there
is no evidence in the record that Kaye Scholer advised any of the other First-Wave
Defendants of its request for a waiver from Ivax or sought any corresponding waiver
Kaye Scholer admits that, at the time of these negotiations, it was aware of the
possibility that Pfizer might ask the firm to represent it in the Gabapentin action.
(Sherman Decl. ¶ 2) So was Ivax, though Mr. Rubin now contends that when the
waivers were executed, he was not informed, nor was it contemplated (presumably
he means by Mr. Rubin himself) that Kaye Scholer would later seek to be substituted
as lead counsel in this matter for the Fitzpatrick Cella firm. (Rubin Decl. ¶ 7) The
terms of the proposed waiver agreement clearly and unambiguously indicate that
Kaye Scholer’s participation in the Gabapentin action is contemplated. By agreeing
to the waiver, which specifically covers waiving the right to seek to disqualify Kaye
Scholer from serving as lead counsel to Pfizer in the Gabapentin matter, Ivax and Mr.
Rubin must have contemplated that ultimate occurrence.
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Mr. Rubin did not consider the implications that Ivax’s waiver would have for
the co-defendants, whose rights might be impacted by Mr. Lindvall’s and Ms.
Clarke’s prior representation of Ivax. (Id.)
Mr. Lindvall started at Kaye Scholer on April 27, 2005. On that same day,
Kaye Scholer’s Professional Ethics Committee distributed a memorandum (the
“Screen Memo”) which stated, in pertinent part, that while Mr. Lindvall was at
“Darby, and until August 19, 2002, Scott represented Ivax in patent infringement
litigations related to Neurontin. In accordance with a waiver agreement we have
obtained from Ivax, Scott will be screened from Kaye Scholer’s representation of
Pfizer in the Neurontin Matters.” (Sherman Decl. Ex. 3) A similar Screen Memo was
sent on behalf of Ms. Clarke on her first day with Kaye Scholer. (Sherman Decl. Ex.
4) There is no dispute that Kaye Scholer has effectively screened Mr. Lindvall and
Ms. Clarke from both the Neurontin and Gabapentin matters.
On September 9, 2005, Pfizer informed the Court that it intended to file a
substitution of attorney, replacing Fitzpatrick Cella with Kaye Scholer as attorneys
for Plaintiffs in the Gabapentin action. This motion ensued.
ANALYSIS
This motion presents two distinct issues. The first is whether the personal
disqualification of Mr. Lindvall and Ms. Clarke (attributable to their side-switching)
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can be imputed to the entire Kaye Scholer firm, and if so, whether Ivax’s agreement
to waive any right to assert a conflict of interest is valid and enforceable. The second
issue is whether the other parties to the JDA have a right to assert a disqualifying
conflict of interest based on an implied attorney-client relationship or other fiduciary
relationship formed by virtue of their joint association in the defense consortium.
Without question Mr. Lindvall and Ms. Clarke are personally disqualified from
representing Pfizer, pursuant to Rule of Professional Conduct (“RPC”) 1.9. Consent
by a client will not cure the conflict when an attorney with primary responsibility for
a matter switches to a firm on the opposing side of the matter. See Kevin H. Michels,
New Jersey Attorney Ethics 578 (2005). This does not end the inquiry though,
because the issue here is whether Mr. Lindvall’s and Ms. Clarke’s personal
disqualifications are imputed to the entire Kaye Scholer firm.
The imputation of ethical conflicts is covered by RPC 1.10. Rule 1.10(c) and
(d) are applicable to the present situation. Rule 1.10(c) states:
When a lawyer becomes associated with a firm, no
lawyer associated in the firm shall knowingly represent aperson in a matter in which that lawyer is disqualifiedunder RPC 1.9 unless:
(1) the matter does not involve a proceeding in
which the personally disqualified lawyer had primaryresponsibility;
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(2) the personally disqualified lawyer is timely
screened from any participation in the matter andapportioned no part of the fee therefrom; and
(3) written notice is promptly given to any affected
former client to enable it to ascertain compliance with theprovisions of this Rule.
However, “[a] disqualification prescribed by this rule may be waived by the affected
client under the conditions stated in RPC 1.7.” RPC 1.10(d). The conditions most
pertinent to an effective waiver require that “each affected client gives informed
consent, confirmed in writing, after full disclosure and consultation . . . .” RPC
It is clear to the Court that under RPC 1.10(c)(1), Mr. Lindvall’s and Ms.
Clarke’s personal disqualifications are imputed to Kaye Scholer, because the matter
in question here, the Gabapentin action, is one in which both attorneys had primary
responsibility while acting as counsel to Ivax. Screening and notice alone would not
be sufficient to prevent Kaye Scholer from being disqualified by the ethical conflict
of interest surrounding Mr. Lindvall and Ms. Clarke. But, as RPC 1.10(d) indicates,
a disqualification prescribed by this rule may be waived. The question therefore
becomes whether Ivax’s waiver, permitting Kaye Scholer to avoid imputed
disqualification by obtaining the consent of each “affected client,” meets the
conditions established in RPC 1.7; namely, that the consent was “informed” and
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given after “full disclosure and consultation.”
The text of RPC 1.7 explicitly requires consent after “full disclosure.” At its
core, the concept of informed consent depends upon the communication of “adequate
information and explanation about the material risks of . . . the proposed course of
conduct.” RPC 1.0(e). A precise definition of “informed consent” and “full
disclosure” is difficult, necessitating a case-by-case factual analysis. In re Lanza, 65
N.J. 347, 352 (1974) (stating that the extent of the necessary disclosure “is a question
that must be conscientiously resolved by each attorney in light of the particular facts
and circumstances that a given case presents”).
Kaye Scholer’s letter clearly informed Ivax that it might represent Pfizer in the
Gabapentin matter, and Ivax was represented by sophisticated counsel in reaching its
decision to consent. The Court concludes that Ivax’s consent to the waiver was
informed after full disclosure. If Ivax were the only “affected client” (RPC 1.7(b)(1))
from whom consent was needed, Kaye Scholer would be permitted to represent Pfizer
The Co-Defendants’ Right to Seek Disqualification as “AffectedClients”
The First-Wave Defendants argue that, based on the JDA and their actions
pursuant thereto, disqualification of Kaye Scholer is still required because, unlike
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Ivax, they did not consent to waive the right to assert this conflict of interest. Neither
Kaye Scholer nor Mr. Lindvall and Ms. Clarke dispute that Mr. Lindvall and Ms.
Clarke acquired knowledge of the co-defendants’ confidential information when
participating in joint defense meetings. Rather, Kaye Scholer argues that it owes its
ethical obligations only to Ivax because only Ivax was Mr. Lindvall’s and Ms.
Clarke’s former client; that Ivax waived its right to object to Kaye Scholer’s
representation of Pfizer; and that its ethical screen, the efficacy of which is
unchallenged, is sufficient to protect the co-defendants’ confidences. The necessary
import of Kaye Scholer’s position is that Ivax, as one party to a joint defense
agreement, can unilaterally waive the right to object to a conflict of interest for all
other parties to the same agreement, as long as a screen is in place to protect the co-
defendants’ confidences. In assessing this position, the Court must consider whether
the JDA (and actions taken pursuant thereto) created a fiduciary relationship or
implied attorney-client relationship among all the parties thereto and their respective
counsel, thus placing the co-defendants in a position to seek disqualification of Kaye
In Essex Chemical Corp. v. Hartford Accident & Indem., 993 F. Supp. 241
(D.N.J. 1998), this Court recognized that counsel working together within a defense
consortium and sharing otherwise privileged information of their respective clients
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could create implied attorney-client or fiduciary obligations under certain
circumstances. Id. at 252. Those circumstances include whether confidential
information was actually exchanged and the precise nature of the relationship among
all defense counsel.2 Id. Other courts have addressed the issue of whether defendants
who are engaged in a joint defense can assert rights to disqualify the side-switching
attorney of a co-defendant. Wilson P. Abraham Const. Corp. v. Armco Steel Corp.,
559 F.2d 250 (5th Cir. 1977); City of Kalamazoo v. Michigan Disposal Serv. Corp.,
125 F. Supp. 2d 219 (W.D. Mich. 2000); GTE North, Inc. v. Apache Products Co.,
In Wilson P. Abraham, supra, Stephen D. Susman, Esq. represented one of
several defendants in a civil suit that arose out of a grand jury indictment in Texas on
charges of conspiracy and antitrust violations in the steel industry. Id. at 251.
Thereafter, a second civil suit was filed against the same defendants based upon a
second grand jury indictment in Louisiana that charged the defendants with bid-
rigging and conspiracy. Id. at 252. In this second civil suit, the plaintiff’s attorney
sought to engage Mr. Susman as co-counsel. As a result of this attempt by Mr.
Susman to switch sides, the co-defendants of Mr. Susman’s former client endeavored
2 In Essex Chemical, the record was sparse, whereas here there is no dispute
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Discussing the sharing of confidences in a joint defense situation, the court
an attorney who is the recipient of such informationbreaches his fiduciary duty if he later, in his representationof another client, is able to use this information to thedetriment of one of the co-defendants. Just as an attorneywould not be allowed to proceed against his former clientin a cause of action substantially related to the matters inwhich he previously represented that client, an attorneyshould also not be allowed to proceed against a co-defendant of a former client wherein the subject matter ofthe present controversy is substantially related to thematters in which the attorney was previously involved, andwherein confidential exchanges of information took placebetween the various co-defendants in preparation of a jointdefense.
The Wilson P. Abraham court recognized that a fiduciary relationship could
arise between Mr. Susman and the co-defendants, but could not resolve the
controversy between the parties because counsel hotly disputed what information was
exchanged among the co-defendants. Id. As there was no direct attorney client
relationship between the parties, the court would not presume an exchange of
confidential information and therefore remanded to the trial judge to determine
whether Mr. Susman was actually privy to confidential information. Id.
In the present case, an examination of the detailed affidavits submitted by
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counsel for the First-Wave Defendants indicates that confidential and privileged
information and attorney work-product were actually shared by them and Mr.
Lindvall and Ms. Clarke. See supra at 3. As indicated above, Kaye Scholer and Mr.
Lindvall and Ms. Clarke do not dispute that Mr. Lindvall and Ms. Clarke were privy
to confidential information – rather, Kaye Scholer contends that its screen is
sufficient to protect whatever confidential information Mr. Lindvall and Ms. Clarke
received as part of the defense consortium.
An examination of the terms of the JDA reveals a clear intent that any
voluntarily-shared information would remain confidential and be protected by the
attorney-client privilege. For example, the JDA states that the signatories are
required to “take all steps necessary to maintain the privileged and confidential nature
of the information.” The terms of the JDA and the undisputed performance
thereunder are sufficient for the Court to conclude that an implied attorney-client
relationship arose between Mr. Lindvall and Ms. Clarke, as counsel for Ivax, and the
other First-Wave Defendants, by virtue of their joint participation in the defense of
The Wilson P. Abraham decision does not address the issue of imputing to
Kaye Scholer Mr. Lindvall’s and Ms. Clarke’s implied attorney-client relationship
with the other First-Wave Defendants. Wilson P. Abraham, 559 F.2d at 252
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(although Mr. Susman was engaged as co-counsel, only Mr. Susman’s personal
In GTE North, the U.S. Environmental Protection Agency gave GTE North,
Inc. (“GTE”), Chrysler Corporation (“Chrysler”) and other companies notification of
Potentially Responsible Party (“PRP”) status, resulting from the cleanup of a
Superfund site. GTE North, 914 F. Supp. at 1577. In this regard, GTE was
represented by Hinshaw & Culbertson. Id. at 1578. Chrysler was represented by Jon
S. Faletto, Esq., of the law firm of Howard & Howard. Id. Together five PRPs,
including GTE and Chrysler, formed the Appleton Road Committee and executed the
Appleton Agreement. Id. at 1577. The purposes of the Appleton Agreement were to
allocate each member's share of the response cost, to cooperate in investigating and
identifying additional PRPs and to pursue cost-recovery activities against any
additional PRPs. Id. The Appleton Agreement provided that all shared information
between members and their counsel “shall be held in strict confidence by the
receiving member and by all persons to whom such confidential information was
revealed by the receiving member.” Id. The agreement also provided that disclosure
of such confidential information to members and their counsel would not constitute
waiver of the attorney-client or work-product privileges. Id. The members of the
Appleton Committee who had elected to pursue cost recovery, including Chrysler and
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GTE, entered into a separate Investigation Agreement implementing a joint
investigation of additional PRPs who had not participated in the cleanup of the
landfill. Id. at 1578. Like the Appleton Agreement, the Investigation Agreement
contained several confidentiality provisions. Id.
Counsel for each member (including Mr. Faletto) met on several occasions to
discuss strategy for conducting the investigation, the investigation results themselves,
the relative merit of proceeding against certain defendants, and the legal strategy for
bringing the cost recovery action. Id. GTE ultimately filed a CERCLA cost recovery
action against Apache Products Company, Dean Foods and others. Id. Attorney
Faletto of Howard & Howard (who had represented Chrysler under the Appleton
Agreement and the Investigation Agreement) appeared on behalf of Dean Foods to
defend it in the cost recovery action. Id. GTE moved to disqualify Mr. Faletto and
his law firm on the basis of imputed disqualification, arguing that an implied
attorney-client relationship arose from GTE’s and Chrysler’s joint membership in the
Appleton Road Committee. Much like the present case, Howard & Howard had fully
disclosed to Chrysler its intention to represent Dean Foods and had obtained
The court granted GTE’s motion to disqualify Mr. Faletto and Howard &
Howard, reasoning that “the disclosures by GTE via its counsel to Faletto, Chrysler’s
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counsel, were made with the expectation that they would not be disclosed to the
targets of the investigation. Faletto’s receipt of such disclosures and participation in
meetings obligated him to refrain from appearing on the opposite side of the same
litigation to which such information would be highly pertinent.” Id. at 1581. The
court concluded that a fiduciary relationship arose between GTE and Mr. Faletto. In
essence, because of their involvement during the joint pre-suit investigation, GTE
became Mr. Faletto’s “former client” for the purposes of disqualification under Rule
To arrive at this conclusion, the GTE North court performed the same analysis
as did the Wilson P. Abraham court and as envisioned by the remand in Essex
Chemical. First, the court examined whether confidential information was actually
exchanged between GTE and Chrysler and their respective counsel, and then
considered the circumstances under which any such exchanges occurred. The latter
entailed examining the confidentiality provisions in the two Agreements. Id. at 1580.
As in the instant case, it was undisputed that counsel for all members jointly
discussed their investigation results, as well as the strategy and legal merits of further
civil prosecution. Id. at 1581. Likewise, the confidentiality provisions clearly
established the intent that shared information would remain confidential and
protected under the attorney-client privilege. The GTE North court concluded that
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Mr. Faletto was privy to confidential information which obligated him to refrain from
For the same reasons, this Court has concluded that Mr. Lindvall and Ms.
Clarke have a fiduciary and implied attorney-client relationship with all of the First-
The next issue that must be determined is whether the First-Wave Defendants,
all of whom are, by implication, Mr. Lindvall’s and Ms. Clarke’s “former clients,”
can assert a conflict of interest to disqualify not only Mr. Lindvall and Ms. Clarke,
Although there is no reason to doubt the efficacy of Kaye Scholer’s screen or
the integrity of Kaye Scholer, Mr. Lindvall and Ms. Clarke in complying with that
screen, screening in this circumstance is insufficient. It is undisputed that Mr.
Lindvall and Ms. Clarke had primary responsibility for Ivax’s defense in the same
matter (the Gabapentin action) in which Kaye Scholer now seeks to represent plaintiff
3 City of Kalamazoo v. Michigan Disposal Serv. Corp., 125 F. Supp. 2d 219
(W.D. Mich. 2000), cited earlier in this Memorandum, discusses GTE North andholds that “an attorney in a joint defense situation may find an attorney-clientrelationship arise with co-defendants as the result of sharing confidentialinformation.” Id. at 235.
4 This precise issue was not addressed in GTE North. In that case, both the
attorney and his firm switched sides in seeking to represent Dean Foods. Thus,this Court must look to the RPCs to resolve the matter at hand.
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Pfizer. As counsel for Ivax, they were privy to actual confidences of the other First-
Wave Defendants. Out of these circumstances arose a fiduciary and implied attorney-
client relationship between Mr. Lindvall and Ms. Clarke and the other First-Wave
Defendants. The Court concludes that these relationships must be imputed to Kaye
Scholer as well. Rule 1.10(c) clearly so states:
When a lawyer becomes associated with a firm, no lawyerassociated in the firm shall knowingly represent a personin a matter in which that lawyer is disqualified under RPC1.9.
The exceptions in RPC 1.10(c)(2) and (3) for screening and notice are not enough to
avoid imputation to Kaye Scholer of Mr. Lindvall’s and Ms. Clarke’s disqualification
because the exception in RPC 1.10(c)(1) cannot be met – this is the same proceeding
in which they formerly had primary responsibility for the representation of Ivax.
Imputation is required unless all three exceptions (RPC 1.10(c)(1), (2), and (3)) are
met. Had Kaye Scholer received a waiver from the other First-Wave Defendants,
pursuant to 1.10(d), this attempt to disqualify it would fail. But, because Kaye
Scholer did not receive a waiver from the other First-Wave Defendants, the First-
Wave Defendants’ motion must be granted.
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Accordingly, IT IS on this 22nd day of December 2005,ORDERED that the Motion to Bar Kaye Scholer LLP From Appearing as
Attorney for Plaintiffs in In re Gabapentin Patent Litigation, MDL No. 1384, Master
Docket No.: 00-2931 (encompassing Civil Action Nos.: 00-2931, 00-3522, 00-4168,
00-4589, 00-6073, 01-0193, 01-0611, 01-1537, 01-2194, 03-1545, 03-1824, 03-4017,

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